Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc.

Filing 197

OPINION AND ORDER denying 189 Motion for request for a telephone conference. Signed by Magistrate Judge Norah McCann King on 2/29/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

INHALATION PLASTICS, INC.,
Plaintiff,
vs.

Civil Action 2:07-CV-116
Judge Smith
Magistrate Judge King

MEDEX CARDIO-PULMONARY, INC.,
Defendant.
OPINION AND ORDER
Counter-defendant David Levine has filed a motion requesting a
telephone

conference

to

resolve

a

dispute

concerning the proposed

depositions of Dominick Arena and Georg Landsberg.
for a Telephone Conference, Doc. No. 189.

Notice for Request

In the motion and reply in

support, counter-defendant Levine (1) requests leave to again depose Mr.
Arena, who was originally deposed on June 3, 2011; and (2) requests leave
to depose Dr. Landsberg, a resident of Germany, in Germany.
A party who seeks to depose a person who “has already been deposed
in the case” must obtain leave of the court.

Fed. R. Civ. P. 30(a)(2).

Under Fed. R. Civ. P. 30, the court will deny leave if denial is
consistent with the standard outlined in Fed. R. Civ. P. 26.

A court

will therefore deny leave to conduct the second deposition “if it
determines

that

.

.

.

the

party

seeking

discovery

has

had

opportunity to obtain the information by discovery in the action.”
R. Civ. P. 26(b)(2)(C).

ample
Fed.

Here, it is undisputed that counter-defendant

Levine was a party at the time of Mr. Arena’s deposition and that both
he and his counsel appeared at the deposition.

Medex CP’s and Medical

ASD’s Joint Response to David Levine’s Request for Telephone Conference,

Ex. B., Doc. No. 193-2, pp. 1-2.

Although counter-defendant Levine

raises certain concerns about the production of documents in advance of
Mr. Arena’s original deposition, he does not identify the relevant
documents with any specificity.

In any case, he offers no explanation

for his failure to address any such concerns in connection with the
original deposition of Mr. Arena or for waiting until the final weeks of
the discovery period to seek Mr. Arena’s re-deposition. Counter-defendant
Levine’s request for leave to re-depose Mr. Arena is therefore DENIED.
This Court has “discretion to limit the scope of discovery where the
information sought is overly broad or would prove unduly burdensome to
produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288,
305 (6th Cir. 2007).

In particular, the Court is required to limit

discovery if “the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action” or if “the burden or
expense

of

the

proposed

discovery

outweighs

its

likely

benefit,

considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action,
and the importance of the discovery in resolving the issues.”
Civ. P. 26(b)(2)(C).

Fed. R.

Counter-defendant Levine proposes to depose Dr.

Landsberg in Germany but fails to address any of the concerns attendant
to a conducting a deposition in a foreign country or to demonstrate that
he has met any of the procedural requirements of Rule 28(b) of the
Federal Rules of Civil Procedure.

See Reiss v. Société Centrale du

Groupe Des Assurances Nationales, 246 F. Supp. 2d 285, 290 (S.D.N.Y.
2003); Mitre Sports Int’l Ltd. v. Home Box Office, Inc., 2010 WL 1507792,
*3 (S.D.N.Y. April 15, 2010); In re Vitamin Antitrust Litig., No.

2

MISC.NO.99–197 TFH, 2001 WL 35814436 (D.D.C. Sept. 11, 2001).

See also

Menovcik v. BASF Corp., 2010 WL 4867408, ** 4-5 (E.D. Mich. November 23,
2010)(“BASF makes no attempt to analyze whether (1) a relevant treaty or
convention is applicable to this case (i.e., a treaty akin to the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters); (2) a letter of request should be issued; or (3) a noticed
deposition before a person who is authorized to administer oaths would
be legal under Thai law. Thus, the only possible relevant circumstance
is a deposition before a person who has been commissioned by the court,
Rule 28(b)(1)(D)”, which requires that the “person who administers the
oath be in the same place” as the deponent).
In light of counter-defendant Levine’s failure to address these
matters, as well as the likely burden to the parties of the requested
discovery, counter-defendant Levine’s request for leave to depose Dr.
Landsberg is DENIED.
WHEREUPON Counter-Defendant Levine’s Notice for Request for a
Telephone Conference, Doc. No. 189, including his motion for leave to
depose Mr. Arena and his motion to for leave to depose Dr. Landsberg, is
therefore DENIED.
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
February 29, 2012

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